Sorrells v. M.Y.B. Hospitality Ventures , 108 N.C. App. 668 ( 1993 )

Judge COZORT

dissenting.

I vote to affirm the trial court’s order dismissing the complaint. I agree that plaintiffs’ claim for emotional distress is an independent claim of plaintiffs and not derivative, and I also concur with the majority that Travis’ negligence is not imputed to the plaintiffs. Nonetheless, I do not find it proper to allow such a claim when plaintiffs’ alleged emotional distress is caused as much by their son’s negligence as it is alleged to have been caused by the negligence of defendant. I believe plaintiffs’ claim is barred by their son’s contributory negligence.

In coming to this conclusion, I am not unmindful of the broad language describing the claim of negligent infliction of emotional distress found in our Supreme Court’s opinion in Johnson v. Ruark, 327 N.C. 283, 395 S.E.2d 85 (1990). I believe, though, that there must be some limitation to that cause of action, and I find that the decedent’s contributory negligence puts his parents’ claim beyond the limit.